United States District Court, E.D. North Carolina, Western Division
L&M COMPANIES, INC., a North Carolina corporation, and PALUMBO FOODS, LLC, Plaintiffs
UNIQUE FOOD COMPANY, INC., LOUIS J. DEANGELIS, BEVERLY A. DEANGELIS, LOUIS J. DEANGELIS, JR., GINA D. BISSETTE, and BISSETTE BROTHERS, LLC, Defendants
OFFICE OF ROBERT E. GOLDMAN Special Appearance Counsel for
Plaintiffs L&M Companies, Inc. and Palumbo Foods, LLC
SPRUILL LLP Kevin Michael Ceglowski Local Civil Rule 83.1
Counsel for Plaintiffs L&M Companies, Inc. and Palumbo
& ASSOCIATES Mark A. Amendola Special Appearance Counsel
for C.H Robinson Worldwide, Inc.
HENDRICK, BRYANT & NERHOOD, LLP Timothy Nerhood Local
Civil Rule 83.1 Counsel for C.H Robinson Worldwide, Inc.
McCARRON & DIESS Kate Ellis Md. Federal Bar No. 16373
Special Appearance Counsel for Lipman-Texas, LLC, The Thomas
Colace Company, Inc., Nickey Gregory Company, LLC, JH
Honeycutt & Sons, Inc., and Nature's Way Farms, Inc.
MULLINS RILEY & SCARBOROUGH LLP Leslie Lane Mize North
Carolina Bar No. 32790 Local Civil Rule 83.1 Counsel for
Lipman-Texas, LLC, The Thomas Colace Company, Inc., Nickey
Gregory Company, LLC, JH Honeycutt & Sons, Inc., and
Nature's Way Farms, Inc.
POE ADAMS & BERNSTEIN LLP Brian D. Darer Catherine G.
Clodfelter Counsel for Defendants Unique Food Company, Inc.
("Unique''), Louis J. Deangelis, Beverly A.
Deangelis, Louis J. Deangelis, Jr., Gina D. Bissette,, and
Bissette Brothers, LLC
Y LAW PLLC Bruce William Akerly Bruce William Akerly Special
Appearance Counsel for Intervenor D&T Brokerage, Inc.
MCANGUS GOUDELOCK & COURIE, PLLC Luke A. Dalton Local
Civil Rule 83.1 Counsel for Intervenor D&T Brokerage,
CONSENT INJUNCTION AND PACA CLAIMS PROCEDURE
C. DEVER III UNITED STATES DISTRICT JUDGE.
on January 28, 2019, L&M Companies, Inc. and Palumbo
Foods, LLC ("Plaintiffs") commenced the instant
action against Defendants Unique Food Company, Inc.
("Unique"), Louis J. Deangelis, Beverly A.
Deangelis, Louis J. Deangelis, Jr., Gina D. Bissette, and
Bissette Brothers, LLC ("Bissette Bros.")
("Defendants") to enforce the trust provisions of
Section 5 (c) of the Perishable Agricultural Commodities Act,
7 U.S.C. §499e(c) ("PACA").
on January 29, 2019, Plaintiffs filed their ex parte
Motion for Temporary Restraining Order
requesting, in part, that the assets of Defendant Unique be
restrained. [Dkt. 8].
on February 8, 2019, this Court entered a Temporary
Restraining Order on the ex parte motion of
Plaintiffs restraining and enjoining the assets of Unique or
its subsidiaries or related companies, among other relief
on February 8, 2019, the Court granted the Unopposed
Motion to Intervene filed by D&T Brokerage, Inc.
("D&T Brokerage") and D&T Brokerage filed
its Complaint in Intervention on February 11, 2019
asserting claims under the PACA. [Dkts. 23 & 24].
on February 11, 2019, proposed Intervenor-Plaintiff C.H.
Robinson Worldwide, Inc. ("C.H. Robinson") filed
its Intervenor-Plaintiff C.H. Robinson Worldwide,
Inc.'s Joinder in Original Plaintiffs' Motion for
Preliminary Injunctive Relief [Dkt. 26] also asserting
claims under the PACA.
Lipman-Texas, LLC, The Thomas Colace Company, Inc., Nickey
Gregory Company, LLG, JH Honeycutt & Sons, Inc., and
Nature's Way Farms, Inc. (the "Lipman Group")
have advised that they also assert claims under PACA and
participated in the negotiation and drafting of this
Consent Injunction and PACA Claims Procedure Order.
The Lipman group have or will request leave to intervene in
Bissette Bros, is the owner of the real property having an
address of 3731 Centurion Drive, Garner, NC 27529 and the
Being all of that certain tract land containing 2.336 acres
(and designated as tract "2") as shown on the map
thereof titled "LOT 2, CROSS WINDS INDUSTRIAL PARK"
which map is recorded in Book of Maps 2007, Page 278 in the
Wake County, North Carolina Register of Deeds Office, and
being all of the property conveyed to Bissette Brothers, LLC,
by that certain North Carolina General Warranty Deed dated
August 28, 2012 and recorded in Book 014902 at Page 02648 in
the Wake County, North Carolina Register of Deeds Office.
(the "Real Property") which is the subject of a
pending sale and which Plaintiffs, D&T Brokerage, C.H.
Robinson, the Lipman Group ("PACA, Claimants")
assert may be subject to the trust provisions of PACA.
the trust provisions of PACA establish a statutory,
non-segregated trust under which Defendants are required to
hold all qualified trust assets including but not limited to
inventory, proceeds, and accounts receivable in trust for
qualified beneficiaries until full payment is made. 7 U.S.C.
counsel for PACA Claimants, D&T Brokerage, C.H. Robinson,
the Lipman Group ("PACA Claimants"), and Defendants
have conferred and reached an agreement regarding the terms
of this Consent Injunction (the "Order") to
establish the manner in which the remaining assets of Unique
will be liquidated and the rights, liens, claims and
priorities determined as to these assets.
PACA Claimants and Defendants have agreed that the sale of
the Real Property should proceed on the terms set forth
IT IS STIPULATED AND AGREED, by and between
PACA Claimants and Defendants as follows:
A) Unique consents to the entry of an Injunction against it
upon the terms reflected in this Order and any additional
terms this Court deems necessary to give effect to this joint
request for issuance of this Order.
B) Unique recognizes that PACA Claimants and other similarly
situated unpaid suppliers of produce may be entitled to a
beneficial interest in the single pool of Unique's PACA
trust assets as defined by applicable law and regulation as
perishable agricultural commodities received by Unique in all
transactions, all inventories of food or other products
derived from such perishable agricultural commodities, all
receivables or proceeds from the sale of such commodities and
food or products derived therefrom and assets commingled
with, purchased with or otherwise acquired with such proceeds
(the "PACA Trust Assets"). PACA Claimants reserve
the right to assert that other assets of Unique and any
affiliated entities should be considered or deemed to be
included within the definition of PACA Trust Assets,
including without limitation, non-produce related inventory,
furniture, fixtures, equipment, vehicles, leases, real
property, and leasehold improvements (the
"FF&E"). PACA Claimants reserve all rights and
claims in and to the assets of Unique and/or any proceeds
realized therefrom, and also reserve the right to pursue
their deficiency claims, if any, against the principals of
Unique and potential transferees of PACA Trust Assets.
Defendants reserve all rights, claims and defenses regarding
the amount, validity, and PACA trust status of the claims of
PACA Claimants or any other similarly situated PACA trust
C) The parties agree that this Order is reasonable and
necessary to provide a procedural framework for the orderly
liquidation of Unique's PACA Trust Assets and FF&E,
and to review, qualify and satisfy any and all claims against
the PACA Trust Assets ("PACA Trust Claims"), to
maximize the recovery for all unpaid beneficiaries of the
PACA trust, and to ensure the rights of' all potential
claimants are efficiently addressed in a single proceeding
without the expense of administering multiple separate
actions to enforce Unique's obligations to all potential
PACA trust beneficiaries.
D) Defendants represent that Unique has insufficient cash or
other assets from non-PACA trust sources, to the extent such
non-PACA trust assets are determined to exist, to finance
either the administration of the PACA trust or the
marshalling and collection of Unique's assets for the
benefit of its PACA trust beneficiaries.
E) This Order may be executed in any number of counterparts
with the same effect as if all signatories had signed the
same document. All counterparts must be construed ...